2018Na20124 Compensation for damages

○ Kim

Law Firm Law Firm (Law Firm)

[Defendant-Appellant]

A Stock Company

Law Firm 21st century General Law Office

Attorney Seo-chul et al.

Gwangju District Court Decision 2016Gahap12473 decided December 13, 2017

July 6, 2018

August 10, 2018

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order of payment shall be revoked. The defendant shall pay to the plaintiff 15,772,046 won with 5% interest per annum from May 8, 2015 to August 10, 2018, and 15% interest per annum from the next day to the date of full payment.

2. All remaining appeals by the plaintiff and incidental appeals by the defendant are dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and the remainder is borne by the Defendant.

4. The part ordering the payment of money under paragraph 1 may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 29,305,040 won with 5% interest per annum from May 8, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance court is amended as stated in the purport of the claim.

3. Purport of incidental appeal;

Of the judgment of the first instance, the part against the defendant shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. cite the reasoning of the first instance judgment;

The reasoning for this Court’s explanation is as follows, and this case’s case’s reasoning is cited, except for any addition or re-use as follows.

2. The addition;

▣ 6쪽 5행 "잠금콘을" 다음에 "미리 점검하여 해제 후 자동으로 잠기는 것을 방지 하고 "를 추가한다.

3. Parts to be used again (not more than 6 pages):

2. Scope of liability for damages

The basis for calculation of property and mental damages suffered by the plaintiff due to the accident of this case, calculation details, and amount are as shown in the corresponding clause of the attached amount of damages calculation table in addition to the following separate statements (However, according to the simple discount method that deducts intermediary interest by the ratio of 5/12 per month, it shall be calculated at the present price at the time of the accident of this case, and the calculation method shall be less than the first month for the convenience of calculation, and less than the last month and less than the last month and less than KRW 1 shall be discarded).

(a) Property damage;

(i)personal property damage;

(A) lost earnings;

(1) Facts of recognition and evaluation

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 8, 18 through 21, 31, 34, 35 (including the number number; hereinafter the same shall apply)

(A) Date of birth and gender: Gender on May 9, 1963

(B) The date on which the life expectancy ends (the complete life tag published in 2015, the Plaintiff’s life expectancy 29.9 years old): March 24, 2045

(c) Occupation and monthly income: Application of unit price for construction machinery drivers and the unit price for construction machinery drivers among the unit price for heavy wage for construction business;

The Plaintiff’s monthly income shall be calculated by applying the unit price for construction machinery drivers on the 22th day of each month, based on the unit price for construction machinery drivers, among the unit price for construction machinery drivers for the first half and second half of the year 2015 and the second half of the year 2016, from the time of the instant accident (Evidence A 18).

(D) Operating period and operating days: From the date of the accident to May 8, 2028, the maximum working age (the maximum working age of 65 years) shall be 22 days each month.

In order to recognize the maximum working age of a person engaged in an individual business based on the empirical rule, the maximum working age ought to be determined by examining the overall circumstances, such as the number of workers by age, employment rate, labor participation rate, working conditions, etc. of employees engaged in the same occupation in addition to the average remaining life of such person, and examining the specific circumstances, such as age, occupation, career, and health of such person, and working environment (see, e.g., Supreme Court Decision 92Da10135, Jul. 24, 1992).

In light of the following circumstances recognized by the aforementioned evidence and the purport of the entire pleadings, it is reasonable to view the Plaintiff’s maximum working age according to the empirical rule as until he/she reaches 65 years of age.

① At the time of the accident, the Plaintiff was a man of 51 years of age, and there was no special health problem. At the time, the average number of men of the Han-gu People’s Republic of Korea was 78.96 years of age, and the number of economically active population was 3,756,000.

1B as of the time of the accident, the average age of the employees engaged in the same occupational category (container truck driver) as the Plaintiff was 49.4, and the age above 50 was 50.6%, and there was no special retirement age in the same occupational category.

③ Even after an accident, according to the statistical data in 2016 and 2017, 60 years of age or older is 14.3% to 20.7% of total container drivers.

④ The duties of container truck drivers are relatively simple labor, and if the health situation is not particularly bad, a person aged 60 or older can perform without any particular problem.

(e)The ratio of injury to the latter and labor capacity;

According to the aforementioned evidence and the purport of the whole argument, the Plaintiff was hospitalized in the Jeonnam University Hospital and Masan Korean Hospital from May 8, 2015, to May 28, 2015, the date of the instant accident,

According to the above facts, 10% for the Plaintiff from the date of the instant accident to May 28, 2015, which is the period of hospitalized treatment, and 32% for the following day to May 8, 2028, which is the end date of operation (On the other hand, even if a removal operation is carried out in the future, the ten-year period, which is the market damage period, exceeds the period from the date of closing the argument of this case to the date of closing the argument of this case, so the labor disability loss rate can be recognized as above regardless of whether it is permanent disability).

(2) Calculation: 116,028,297

B) Wrons treatment expenses

(1) The plaintiff's assertion

The Plaintiff spent KRW 4,261,840 as medical expenses incurred from the instant accident, and the Defendant shall compensate for such expenses.

(2) Relevant legal principles

When a victim who received insurance benefits under the National Health Insurance Act claims for damages against a perpetrator, if the victim's negligence competes with that of the tortfeasor, the amount of damages calculated first shall be offset by negligence, and then the amount of the tortfeasor's liability shall be calculated by deducting the insurance benefits from the amount of damages calculated first, and the amount of damage corresponding to the amount of the insurance benefits so deducted shall be acquired by the National Health Insurance Corporation on behalf of the perpetrator (see, e.g., Supreme Court Decision 2002Da50149,

(3) Facts of recognition

According to the purport of Gap evidence Nos. 7 and 21 and the whole pleadings, the plaintiff's expenditure of KRW 4,261,840 in total, as stated in the table below, after reducing the amount of the accident in this case.

A person shall be appointed.

Meanwhile, according to the statement in Eul evidence No. 3, the National Health Insurance Corporation may recognize the fact that the plaintiff paid 5,949,790 won out of the medical treatment provided by the accident in this case as the Corporation's charges.

(4) Determination

According to the above legal principles and the facts of recognition, the Plaintiff’s total medical expenses of KRW 10,211,630 (i.e., the Plaintiff’s principal’s charges of KRW 4,261,840 + the Corporation’s charges of KRW 5,949,790), and only the balance after deducting the Corporation’s charges may be claimed against the Defendant as the damage for the treatment expenses.

However, it is obvious that the remaining amount after deducting an amount equivalent to 60% of the Plaintiff’s negligence from the total medical expenses incurred from the instant accident is calculated as KRW 4,084,652 ( = 10,211,630 x (1 - - 0.6). If the insurance benefits borne by the National Health Insurance Corporation are preferentially deducted from the aforementioned amount, 5,949,790 won is preferentially deducted from the insurance benefits borne by the National Health Insurance Corporation, the damage for the period during which the Plaintiff may claim against the Defendant would not remain.

Therefore, we cannot accept this part of the plaintiff's argument.

(C) future treatment costs;

The plaintiff asserts that the defendant should compensate for the damages caused by the accident of this case, which occurred at least KRW 2,00,00,00 in the event that he received a refluoral refluoral refluoral, Nos. 11, 12, 1, 2, 3, 3, and undergoes a refluoral removal operation in the future.

However, even if all the evidence presented by the plaintiff were collected to this court, it is not enough to recognize that the future removal operation for the plaintiff is essential, and there is no other sufficient evidence to regard it as such.

The plaintiff's assertion on this part is without merit.

D) Hashel's king expenses

(1) Facts of recognition

According to the aforementioned evidence and the purport of the entire pleadings, the Plaintiff: (a) undergone vertebrate saving and balpted operations on May 9, 2015 at the Jeonnam University Hospital Hospital; (b) the Plaintiff was required to provide 8 hours a day to the Plaintiff from May 8, 2015, the date when the instant accident occurred to the seven days after performing the said operation (from May 16, 2015), and (c) the fact that the urban daily wage was 87,805 around May 2015.

Meanwhile, the Plaintiff asserted that it was necessary to open until November 8, 2015, which is the recovery period after surgery, but the evidence submitted by the Plaintiff alone is insufficient to recognize it.

(2) Calculation: 790,245 won (=87,805 won x 9 days)

(ii) material property losses;

A) The Track exchange price of this case

According to the purport of Gap evidence Nos. 4 and 10 as a whole and the arguments, ① the Track of this case was scrapped due to the accident in this case, and the plaintiff recovered KRW 5,500,000 as the lack price, ② the Track type, annual type, form, odometer, mileage, and output of the instant Track as of the month before the occurrence of the accident in this case are considered as follows: 40,000 won in the case of higher class; and 38,000,000 in the middle class as of the management status.

In light of the above facts, as long as there is no evidence to determine otherwise that the management status of the fleet of this case is higher, it is reasonable to deem that the exchange price is 32,50,000 won (=38,000,000 won - 5,500,000 won) remaining after deducting the 5,500,000 won from the 38,000 urgency.

B) The appraisal fee for the market price of the Track in this case

If an article was damaged due to a tort and its repair is impossible, the exchange price shall be the ordinary damages, and if the exchange price calculated in the appraisal made for the calculation of the exchange price before a civil lawsuit is recognized in the civil lawsuit, it is reasonable to view that the appraisal cost is also included in the ordinary damages.

However, according to Gap evidence No. 15, the plaintiff can be found to have paid 220,000 won with the appraisal fee of the market price of the Tracter of this case, which should include the plaintiff's property damage.

C) The instant towing and repair costs and towing costs

Due to the instant accident, the Plaintiff suffered damages of KRW 1,819,00,00 from the repair cost and towing cost of the instant towingler, as there is no dispute between the parties, and thus, it is recognized as the Plaintiff’s property damage.

D) Trackers and Trackers Tracks of this case

The Plaintiff calculated the amount calculated by multiplying the amount of the table of the business model used by the Korea Insurance Development Institute in accordance with the calculation method of the standard terms and conditions of automobile insurance multiplied by the period of closure, and sought KRW 2,022,30,00 as the temporary loss for ten days of the instant track, and KRW 404,460 as the temporary loss for two days of the instant track.

However, it is difficult for the Plaintiff to recognize the losses caused by the temporary closure, inasmuch as the Plaintiff recognized the losses caused by the temporary closure of business during the period during which the Plaintiff was unable to conduct business using the instant Tractor and the instant Tracler, and as long as the Plaintiff did not prove the income and expenses at the time of the instant accident, as well as the Plaintiff recognized the lost income during the period during which the Plaintiff was unable to conduct business as the losses, as seen earlier,

The plaintiff's assertion on this part is without merit.

(e) new purchase track acquisition tax;

The Plaintiff is also seeking for considerable damage to the acquisition tax, which was disbursed to scrap the instant Track and purchase a new Track due to the instant accident, but the aforementioned payment of acquisition tax cannot be deemed as damage with a Track relationship with the instant accident, and thus, the Plaintiff’s assertion is difficult to accept.

3) Calculation: 60,543,016 won

(16,028,297 won + 790,245 won for lost expenses + 32,50,000 won for the exchange of Trackors + 220,000 won for the appraisal of the market price of Trackers + 1,819,000 won for repair and towing expenses) x 40%

(b) Consolation money;

1) Reasons for consideration: The plaintiff's age, family relationship, the background and result of the occurrence of the accident in this case, the degree and degree of the injury and the disability in the aftermath, and various circumstances shown in the arguments in this case shall be considered.

According to the statement in Eul evidence No. 9, Lee In-bok, who is the defendant, his safety officer, and Lee Jong-ok, who is the driver of the instant Crain, was under a criminal trial related to the instant case, and the plaintiff was deposited as the principal deposit, but the deposit of KRW 20 million was recognized as the principal deposit, but the deposit of part that is not the full amount of the debt did not take effect in that part, and the plaintiff was received as a partial repayment. Since there is no evidence to deem it, this amount is not considered to set the amount of consolation money.

(ii) Amount determined: 20,000,000 won;

C. Sub-committee

The Defendant’s damages arising from the instant accident (i.e., KRW 60,543,016 + solatium 20,00,000) and KRW 64,770,970 cited in the judgment of the first instance, which are the date of the instant accident, deemed reasonable to dispute over the existence and scope of the Defendant’s duty of performance from May 8, 2015 to December 13, 2017, which is the date of the judgment of the first instance, which is the date of the determination of the Civil Act, and KRW 5% per annum 15% per annum from the following day to the date of full payment; KRW 15,772,046 per annum from the following day to the date of full payment; KRW 15% per annum from May 8, 2015, which is the date of the instant accident to the date of full payment; and KRW 5% per annum from the date after the date of the instant judgment to the date of full payment; and KRW 15,815% per annum per annum.

4. Conclusion

The Plaintiff’s claim shall be accepted within the scope recognized above, and the remainder shall be dismissed as it is without merit. Since the part of the judgment of the court of first instance, which partially differs from the part of the judgment against the Plaintiff, is reversed, and the Defendant is ordered to pay the money additionally recognized by this court. Since the remainder of the judgment of the court of first instance is legitimate, the Plaintiff’s remaining appeal and the Defendant’s incidental claim are dismissed as they are all

Nowon-gu (Presiding Judge)

Kim Dok-do

Salary class root